Collegiality over constitutionality Tom Smith

Harvard law prof Jack Goldsmith endorses his former boss Elena Kagan for Supreme Courthood but chides the judiciary committee for having been unfair to conservative nominees in the past.

I have been pondering this Kagan thing in between driving kids to various activities, which is my full time job at the moment.  I have not reached a final conclusion for such an epic event as making up my mind must be carefully prepared.  But as this is only a blog, I thought I might put forward the following thoughts, at the risk of their being not fully baked.

• Jack Goldsmith is a very impressive guy and I found his book about his service in the Bush administration at OLC fascinating.  But something for all of us small people, as the BP guy with the funny accent called us, to remember is that the upper echelons, especially the upper upper upper echelons of the legal profession form a sort of club one of the key tenents of which is mutual support and aid.  That's putting it rather too strongly but something of its sort is certainly true.  So with all due respect, when I read of this endorsement, it just makes me think mainly that I don't know a lot about the internal dynamics of the Harvard Law School faculty and what those folks aspire to, but I'm sure there's a lot to know just as there is a lot to aspire to.  OTOH if Goldsmith were to come out and say "This. person. must. be. stopped!" that would be a triple alarm fire as I guess it would take something like a satanically possessed Moscow trained hood to provoke such a reaction.
• I admit in my old age I have come to be completely unmoved by the argument that any President but especially this President deserves deference as to his nominees to the high court or any other court.  In my own small way, I have a career too, so I am not going to name names, but this President has nominated some utterly unqualified people to the bench, I mean utterly, so deference, eh, I start off not feeling it.  Then there is the point that the Democrats showed absolutely no deference to Bush's nominees, so why conservatives should decorously walk while everybody else is running is beyond me.  But more importantly is that this strikes me as paying attention to your table manners when your house is on fire.  All else being equal, table manners are an important thing indeed and distinguish us from savages.  All else is not equal.  I view our constitutional order as being like a lovely 18th century house, beautiful to the eye, but also reflecting astonishingly permanent principles of good design.  Unfortunately, its basic structure has been undermined by additions starting in the early 20th century, damage left over from various wars, and scarred and weakened even more by hideous accretions of 1960s architecture that were fashionable at the time but now look depressingly shabby where not downright dangerous.  Add to that the whole thing is infested with termites and on fire.  This metaphor could go on.  In this state, the one and only question should be, will this nominee on the margin help or hurt the project of (not sure what the best word is but I'll go with) restoring the basic structure and such rare sound additions as there are, or will she just support the ongoing destruction and decay and immolation?  Is she qualified, is she a nice woman, is she good looking, bad looking, a Red Sox fan?  Is she as highly qualified as all get out?  I care about any of this only as much as Lincoln should have cared about them in choosing generals.  Lincoln rightly cared most about, will this general win battles and the war?
• There could be some complicated relationship between elite collegiality and mutual support and promoting the old, good cause, even when it means conservative/libertarians coming out in support of liberal nominees.  But it's hard to figure because it is hard to distinguish the game of usually fairly moderate conservatives making their way in an overwhelmingly liberal profession. I mean, maybe somebody is just gunning to be Ambassador to Malta.  But you notice progressive legal eagle sorts do almost nothing of this sort.  OTOH maybe this is a game conservatives must play, just as African-Americans in big law firms (in the 1980s at least, my era) were well advised to dress really well and have exquisite manners.  If you're in the minority and face prejudices, you have to adapt and conform to a certain extent.  I have said various supportive things of Kagan, but that is because I can well imagine doing worse, and if Obama is in there for eight years, we probably shall.
• There is this whole complicated and insular world of the Court itself, its former clerks, people who have argued before it and/or will in the future, the people who write the articles Justices or more likely their clerks will read and cite.  Probably a few thousand people at most with an inner circle in the hundreds.  You probably don't want all conservatives making pariahs of themselves in this world, as for example Robert Bork did, as grotesquely unfair as that was to him.  Or maybe you do?  
• In any event, to my mind, the GOP in the Senate should filibuster Kagan if by doing so they could advance the cause referred to above, that is, that whole limited constitutional government thing.  As Thomas More implies in Robert Bolt's A Man for All Seasons, nobody is obliged to go to hell out of good fellowship.  The harder question is, would a filibuster serve this end, or would we fellow-travelers be better off keeping the powder dry for another day?  I really don't know.  It might.  OTOH maybe energies should be saved for a game-changer nominee.  Then somehow you have to factor in that for many (most?) GOP Senators, their support of the Constitution really extends only so far as their own interest.
• At the risk of repeating myself, I think those of us who care about this sort of thing need to get it through our noggins that the faction that our young president best represents really does not believe in and is in fact actively opposed to the principles we cherish most in our frame of government.  You can trace those principles back to the founding, of course, but I am even more impressed by how handy they will come in in the future. A president who wants Supreme Court justices who will not get in the way of his (one searches for a sufficiently ugly neologism) neo-progressive vision, is not entitled to any deference in my book.  I mean, honestly.  Deference, hell.